28 July 2017

Do you employ any EU nationals in your business?

The government has finally shed some light for EU citizens who are living in the United Kingdom. The snappily titled policy paper ‘Safeguarding the position of EU citizens in the UK and UK nationals in the EU’ sets out the proposals.

All treaty rights up to the point of the UK’s exit from the EU will be honoured, but there will be changes from a cut-off date yet to be fixed but between 29 March 2017 (the date when Article 50 was triggered) and the date when we formally leave the EU (Brexit). Whilst the proposals are subject to change, we set out below the headlines.

EU citizens arriving in the UK post-Brexit will be subject to whatever new rules the government imposes under our domestic legislation.

EU citizens residing in the UK pre-Brexit

There are a number of proposals:

They will be required to obtain immigration status under UK law by applying for a residence document.

Their right to remain in the UK after Brexit will be determined by reference to their years of continuous residence in the UK at the cut-off date. This is so even if they have already been granted permanent residence because that permission was granted under EU law which will not be valid after Brexit

EU citizens who have lived in the UK for five years or more before the cut-off date will be able to apply for settled status under UK law. This gives them the right to stay in the UK indefinitely.

EU citizens who arrive in the UK before the cut-off date but have not lived in the UK for more than 5 years by Brexit will be allowed to remain but will need to apply for temporary permission to stay after Brexit. When they have reached 5 years they can apply for settled status.

EU citizens who arrive in the UK after the cut-off date but before Brexit will be allowed to remain in the UK for a ‘grace period’ which starts at Brexit and is currently expected to last for up to two years. If they wish to remain longer they will have to apply under the domestic UK immigration rules in force at that time. The government has stated that anyone arriving after the cut-off date should have no expectation of guaranteed settled status

EU citizens and family members with settled status will lose their status if they leave the UK for more than two years. If they wish to return to the UK they will then be subject to the UK’s domestic immigration rules.

The above arrangements will not apply to Irish citizens. Their existing rights will be preserved after Brexit.

How will family members be treated?

Family members who join a qualifying EU citizen in the UK before the cut-off date will be able to apply for settled status after 5 years in the UK, irrespective of the cut-off date.

After Brexit the rights of family members who wish to join an EU citizen in the UK will depend on their nationality. They will be caught by the post-Brexit immigration arrangements agreed between the UK and the EU if they are EU nationals, or by the rules that apply to non-EU national family members.

If both the EU citizen and their family member arrive in the UK after the cut-off date, their rights will be subject to the post-Brexit immigration arrangements determined by the UK government.

The rights of students

EU citizens who are studying in the UK will be able to continue their studies. EU citizens who are starting courses in the 2017/18 and 2018/19 academic years will continue to be eligible for student support and ‘home’ fee status for the duration of their course. This will allow students to complete their studies in the UK.

What rights will go with the new status?

EU nationals who have settled status will have the same entitlement to public funds as British citizens. This is essentially the same as for an individual who has been granted indefinite leave to remain in the UK under the immigration rules.

However, EU nationals who have temporary status in the UK will have similar entitlements to EU nationals who are currently lawfully present in the UK but have not acquired permanent residence.

Application form and fees for settled status and temporary status

The government has not mentioned the likely fees for applying for settled status and temporary status. The fairness of requiring EU nationals to pay for settled and temporary status is questionable. We await more detail from the government.

What should EU citizens do?

We recommend that EU nationals who have resided in the UK for 5 years apply for permanent residence now and, after completing 6 years of residence, go on to apply for British citizenship. Once an EU national has been naturalised as a British Citizen they are not subject to the government’s future proposals and will avoid any post-Brexit rule changes or fee hikes and their right to remain in the UK is protected.

Issues for employers

Employers relying on EU citizens to fill job roles may find that the current uncertainty deters those citizens from coming to the UK. The mechanism for applying for settled status is not in place yet and the cost and process is yet to be confirmed.

Immigration applications are complex and document-heavy. The government’s stated aim is to make the application process streamlined and user-friendly. Until details of the process and the evidential requirements are published, EU citizens should be diligent about their retention of financial, travel and residence documents in particular from the date of arrival in the UK until the date of application, as these will need to be produced.

It is estimated that the Home Office will need to process more than 3 million applications for settled status. EU citizens should make those applications as soon as possible to get into the queue well before the end of the grace period.